CITTA v. BOROUGH OF SEASIDE PARK

"[w]here the existence of a handicap is not readily apparent, expert medical evidence is required," recognizing that New Jersey courts "place a high premium on the use and strength of objective medical testimony in proving the specific elements" of a prima facie case under the NJLAD. 173 N.J. at 16 ( citing Clowes, 109 N.J. at 591-93); see also Gimello. 250 N.J. Super. at 365 (fact that plaintiff was obese was demonstrated by unrefuted medical evidence); Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501, 521, 777 A.2d 365 (finding plaintiff's course of treatment to be sufficient proof of his disability). Simply because obesity has been recognized as a handicap within the NJLAD definition of a disability, does not relieve Plaintiff of his duty to prove he has a disability. Plaintiff must prove, by a preponderance of the evidence, that he has a disability, not that obesity itself is a disability under the NJLAD.

In Viscik, the Supreme Court found that the plaintiff's "obesity-based arthritis, heart condition and obstructive lung disease [were] clearly `physical infirmities' under the first prong of the physical handicap test." 173 N.J. at 17. As to the second prong — that the infirmity be caused by "bodily injury, birth defect or illness" — the plaintiff's expert testified that the plaintiff's "metabolic condition is genetic, that she suffered from it since birth, and that it is a direct cause of the obesity-based infirmities." Id. Additionally, the plaintiff testified about, and her expert attested to, the "limits her morbid obesity" imposed regarding her knee, "her inability to move around quickly and need for a cane," and "the effects of her asthma and shortness of breath." Id. at 17-18. The New Jersey Supreme Court found this evidence sufficient to establish that Viscik was handicapped within the meaning of the NJLAD. Id. at 18.

Here, to establish he is handicapped under the NJLAD, Plaintiff asserts that, at one point in time, his physician expressed to him that he was morbidly obese, and that he underwent gastric bypass surgery. Although Defendants dispute that Plaintiff has adequately proved that he fits the statutory definition of "handicapped," even if Plaintiff has established a prima facie case, Plaintiff's NJLAD discrimination claim nonetheless fails because Defendants have presented legitimate non-discriminatory reasons for the alleged unlawful action.

Defendants assert that Plaintiff's past obesity is not a handicap under the NJLAD because, prior to his gastric bypass surgery, Plaintiff felt fully capable of performing all of his duties as a police officer and that his weight had no effect on the performance of his duties as a police officer or any other of his daily activities. Additionally, Plaintiff admitted at deposition that he did not consider his weight to be a disability, either before or after his surgery. To the extent the NJLAD prohibits discrimination on the basis of a perceived handicap, Defendants argue Plaintiff has presented no evidence that indicates any of his supervisors perceived his weight to be a handicap. Moreover, Defendant argues that if Plaintiff's obesity ever qualified as a disability, it terminated after he underwent gastric bypass surgery in December 2001. As to Plaintiff's argument that his disability was effectively acknowledged by virtue of the Borough granting him ordinary disability retirement, Defendants respond that his disability retirement was for his work-related stress in 2007, not for his obesity in 2001.

b. Non-Discriminatory Reasons for Defendants Actions

As stated above, if a plaintiff successfully establishes a prima facie case of discrimination, it creates a presumption of discrimination and the burden shifts to the employer to articulate legitimate, non-discriminatory reasons for its actions. Clowes, 109 N.J. at 596; LaResca, 161 F. Supp. 2d at 335. The employer, however, "carries only the burden of production, rather than persuasion, of showing a legitimate, nondiscriminatory reason for its action." Greenberg v. Camden County Vocational and Technical Schools, 310 N.J. Super 189, 199 (App. Div. 1998). The employer need only present evidence sufficient to raise a genuine issue of fact as to whether the plaintiff was discriminated against. Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). "Once the employer sets fort a legitimate, nondiscriminatory reason for its adverse employment action, the burden again shifts to the employee to show that the employer's articulated reason `was merely a pretext to mask the discrimination' or was not the true motivating reason for the employment decision." Id. (citing Kelly v. Bally's Grand, Inc. 285 N.J. Super. 422, 430, 667 A.2d 335 (App. Div. 1995). A plaintiff meets this burden "by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Texas Dep't of Community Affairs, 450 U.S. at 256).

When a defendant responds to a plaintiff's prima facie case by presenting legitimate, nondiscriminatory reasons for its actions:

[T]he plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons, . . ., was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). . . . [To do so,] the non-moving [party] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," . . . and hence infer "that the employer did not act for [the asserted] non-discriminatory reasons."

Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764-765 (3d Cir. 1994) (citations omitted)); Bally's Grand, 285 N.J. Super. at 431-32 (holding that "plaintiff need not provide direct evidence that the employer acted for discriminatory reasons in order to survive summary judgment[;]" rather, she "need only point to sufficient evidence to support an inference that the employer did not act for its proffered non-discriminatory reasons.").

Here, Plaintiff alleges that he was discriminated on account of his weight because he was: (1) reprimanded for accidentally discharging Officer Garbe's weapon in the locker room; (2) reprimanded for issuing summonses to Borough firefighters, residents and lifeguards; (3) reassigned to an investigator position in order to "take [him] out of uniform and . . . the public eye because [he] was overweight," Pl.'s Dep. 96:5-7; (4) forced to attend far-off seminars and training sessions; (5) forced to perform janitorial/clean-up type duties, which were not within the scope of his job description; (6) instructed not to speak with anyone; and (7) ultimately stripped of all his duties. Defendants argue that these actions do not constitute adverse employment actions, even if viewed in the aggregate, and to the extent any may be deemed adverse actions, they have produced legitimate, non-discriminatory reasons and Plaintiff has failed to produce evidence that the legitimate reasons proffered are pretext for prohibited discriminatory motivation.

Regarding the incident where Plaintiff accidentally discharged Officer Garbe's weapon, Plaintiff asserts that he was discriminated against because he was punished and, to his knowledge, Officer Garbe was not held accountable or punished. Plaintiff believes Officer Garbe was not held accountable because Chief Beining did not allow Plaintiff to see the investigation materials relating to the incident. Defendants respond that Plaintiff was reprimanded following the locker room incident for accidentally discharging Officer Garbe's gun in the locker room and Plaintiff does not dispute his responsibility for the incident. Defendants assert that Plaintiff was not allowed to see the investigation materials regarding the incident because, as Plaintiff admits, disciplinary materials concerning other officers are confidential, therefore Chief Beining had no duty, or right, to inform Plaintiff if and how Officer Garbe was punished or allow him to see the investigation report.

Concerning the three sets of summonses for which Plaintiff was allegedly reprimanded, Defendants argue that although Chief Beining did speak to Plaintiff about these summonses and did tell him that he should not have issued them, Plaintiff was not reprimanded or disciplined. In any event, Plaintiff was not discriminated against because Chief Beining, as Chief of Police and Plaintiff's superior, had the right to inform his subordinates of Department practices and instruct him to perform his duties in compliance therewith. Therefore, to the extent Chief Beining thought Plaintiff should not have issued the summonses, it was within his right to inform Plaintiff of such.

Plaintiff also alleges that he was discriminated against because of his weight when Chief Beining reassigned him as an investigator in order to "take [him] out of uniform and . . . the public eye because [he] was overweight." Pl.'s Dep. 96:5-7. Defendants respond that Plaintiff was made an investigator because there was a need for the position. Moreover, Plaintiff testified at deposition that he believed he was reassigned as an investigator because Chief Beining "felt there was a need for that position to be filled." Pl.'s Dep. 96:1-4.

Regarding Plaintiff's allegation that he was discriminated against by being sent to seminars and training sessions, Defendants argue that this is not an adverse employment action because they were a part of Plaintiff's job and he did not lose any pay or other privilege of employment by attending. Moreover, Defendants assert, and Plaintiff admits, that the seminars were beneficial to Plaintiff. See Pl.'s Dep. 124:10-15.

As for being required to perform "janitorial/clean up" duties in the basement of Borough Hall, Defendants again deny that this was an adverse employment action or that it was motivated by any discriminatory intent. Defendants assert that the basement clean up was "something that needed to be done" and that other officers in addition to Plaintiff were assigned to this task. Moreover, Plaintiff admitted that the clean up was something that needed to be done and he was not the only officer required to do so. See Pl.'s Dep. 127:9-16, 127:22, 128:8-10.

Regarding Plaintiff's allegation that he was "instructed not to speak to anyone" and "ultimately stripped of all his duties," Defendants assert that Plaintiff was instructed to refrain from issuing summonses and removed from his position as use-of-force instructor because Plaintiff was found liable for the use of excessive force by theBruno jury. Defendants additionally assert that the Borough attorneys recommended that Plaintiff no longer do the use-of-force training. Defendants further assert that their legitimate, nondiscriminatory reason for temporarily taking Plaintiff off street duty and ordering an internal investigation was the federal jury finding Plaintiff liable for excessive force. Furthermore, Defendants argue that it is within the Department's best interest to show the community it serves that it does not tolerate the use of excessive force and that it will investigate such claims to ensure the community's safety.

Defendants argue that Plaintiff has not presented any evidence that their legitimate nondiscriminatory reasons should not be believed or that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the Department's actions. Plaintiff underwent gastric bypass surgery in late 2001, while the events leading to his alleged constructive discharge did not occur until March 2007. Defendants point out that Plaintiff testified at deposition that "his hell" began after the Bruno verdict in 2007 when he was stripped of his police duties and the "beginning of the end" of his career was when an internal affairs investigation was instituted after theBruno jury found him liable for using excessive force and falsifying a police report. Furthermore, although Plaintiff claims that the decision to strip him of his duties was motivated by Chief Beining's past feelings concerning Plaintiff's weight, he admitted at deposition that he did not experience any discrimination based on his weight within the two years prior to filing the Complaint. Although Plaintiff speculates that Defendants' actions were motivated by feelings about his past obesity, he has provided no evidence, other than his subjective belief, from which a jury could conclude that he was discriminated against because of his weight/past obesity. Rather, Plaintiff's Opposition Brief merely questions why Defendants acted as they did and baldly asserts that Chief Beining has not explained what these actions were designed to accomplish. Merely questioning or disagreeing with an employer's asserted reasons for its actions does not amount to evidence from which a factfinder could reasonably disbelieve the reasons or believe they are a pretext for an invidious discriminatory reason.

Accordingly, Defendants motion for summary judgment as to Plaintiff's NJLAD claims is GRANTED.

IV. Plaintiff's Due Process Claims

Although not asserted in a separate count, Plaintiff's Third Cause of Action alleges that Defendants violated his right of due process under Federal and State law. Plaintiff appears to assert that he has a property right protected by the Fourteenth Amendment in his rank within the Department and in his continued employment as a police officer with the Borough which was infringed upon by Defendants' actions. Plaintiff appears to predicate his claim on a violation of both procedural due process and substantive due process. In either case, the relevant question before the Court in determining whether the Fourteenth Amendment has been violated is whether Plaintiff had a protected interest in retaining his job as a police officer and/or in not having his rank reduced. The Court finds that summary judgment is appropriate here because Plaintiff has failed to demonstrate any deprivation of a property interest as required to pursue a due process claim under procedural or substantive due process; in the absence of such interest, Plaintiff cannot prevail on his due process claims.

The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The Clause has both a procedural and substantive component; it governs the procedures by which a State may deprive persons of liberty and property and bars "certain government actions regardless of the fairness of the procedures used to implement them." Planned Parenthood v. Casey, 505 U.S. 833, 846, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Nicholas v. Pa. State Univ., 227 F.3d 133, 138-139 (3d. Cir. 2000).

1. Procedural Due Process

In order to state a claim for deprivation of procedural due process rights, a plaintiff must allege that "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of `life, liberty, or property,' and (2) the procedures available to him did not provide `due process of law'." Hill, 455 F.3d at 233-34. "[W]hether there is a protected interest sufficient to trigger constitutional protection is an issue of law." Clark v. Township of Falls, 890 F.2d 611, 617 (3d Cir. 1989). The Court conducts a familiar two-part inquiry in analyzing a procedural due process claim: the Court determines whether Plaintiff "was deprived of a protected interest, and, if so, what process was his due." Logan v. Zimmerman Brush, Co., 455 U.S. 422, 428 (1982); see also Holman v. Hilton, 712 F.2d 854, 858 (3d Cir. 1983).

Plaintiff alleges a property interest in his continued employment as a police officer and in not having his rank reduced. Property interests are not created by the Constitution, but are created and defined by "existing rules or understandings that stem from an independent source such as state law." Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it . . . He must, instead, have a legitimate claim of entitlement to it." Id. However, federal constitutional law, and not state law, determines whether those interests rise to the level of a "legitimate claim of entitlement" protected by the Fourteenth Amendment. Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978) (citations omitted).

Plaintiff asserts that a protected property interest in his continued employment and rank is created by N.J.S.A. 40A:14-147, which provides in pertinent part:

no member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer.

(Emphasis added). Under the statute, therefore, it is clear that Plaintiff had a property interest in his position as a police officer. See Kelly v. Borough of Sayerville, 107 F.3d 1073, 1077 (3d Cir. 1997). Plaintiff also asserts that the statute also creates a protectable property interest in not having his rank reduced. Defendants do not dispute that N.J.S.A. 40A:14-147 creates a property interest for Plaintiff to not be suspended, removed, fined or reduced in rank without a written complaint or hearing. See Defs.' Br. Mot. Summ. J. at 40-41.

Plaintiff claims he was deprived of a protected property interest when he was "stripped of all of his duties" following the Bruno trial, which he characterizes as a demotion. Although Plaintiff concedes that neither his job title was changed nor his pay reduced following the Bruno trial, nonetheless he asserts that being "stripped of all of his duties" constitutes a constructive reduction in rank, thereby depriving him of his protected interest in not having his rank reduced. Defendants counter that Plaintiff did not experience any reduction in rank, actual or constructive, when Chief Beining temporarily changed Plaintiff's job assignments because Plaintiff does not have a property interest in particular job assignments absent a concomitant impact on salary, rank, or other benefits.

In Clark, the Third Circuit addressed the issue of whether a change of duties constitutes a constructive reduction of rank sufficient to trigger due process protection the same as would a formal reduction in rank. 890 F.2d at 617. Recognizing that property interests are created by state law, the Clark court looked to the Pennsylvania statute to determine whether the plaintiff had a "legitimate claim of entitlement to the retention of his duties," and found that the plaintiff had a protected interest it not having his rank reduced. The court noted that while actual reduction in rank is indicated by a change in job title, in the case of a constructive reduction in rank, where "the officer's title has not been altered," "[a court] must look to other traditional indicia of change in rank to determine whether the employee's rank constructively has been reduced." Id. at 618. As for the traditional indicia of change in rank: "[a] change in pay is the most obvious. Other indicia may be the imposition of duties normally given to employees of a lower rank, substantially reduced responsibilities, termination of privileges of rank, and whether the changes or restrictions are temporary." Id.

This Court notes that although the Clark decision was based upon the Pennsylvania Police Tenure Act, 53 Pa.Cons.Stat.Ann. § 812 (Purdon 1974), that statute is largely similar to the New Jersey statute at issue here. The Pennsylvania Police Tenure act states: "No person employed as a regular full time police officer in any police department of any township of the second class . . . shall be suspended, removed or reduced in rank except for the following reasons: [physical or mental disability; violation of any official duty; commission of crime; inefficiency, neglect, intemperance, disobedience of orders, or conduct unbecoming an officer; intoxication while on duty.]" cf. N.J.S.A 40A:14-147 (no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer.)

Applying these criteria, the Third Circuit found that a temporary reassignment of duties did not amount to a constructive reduction in rank. In that case, the plaintiff's duties were changed, however he "retained not only his lieutenant's rank but also his lieutenant's salary." Id. Additionally, although "many of [the plaintiff's] duties were taken from him, he was not left without any job functions." Id. Furthermore, notwithstanding the plaintiff's displeasure with the changes to his duties and subjective belief that he "had no job left," the duties he had were duties "generally performed by lieutenants and were not demeaning." Id. Finally, the Third Circuit noted the changes to the plaintiff's duties were only for six weeks and this was "patently consistent with a temporary reassignment." Id. Based on this evidence, the Third Circuit found that the plaintiff was not constructively demoted. Id. The court concluded that since the plaintiff "was not constructively reduced in rank, it follows as a matter of law that no property interest in his employment created by [the state statute] was infringed." Id. at 619.

The Third Circuit did not hold in Clark that a change in duties could never constitute a constructive reduction in rank under the Police Tenure Act, only that no constructive demotion occurred based on the evidence presented in that case. Clark, 890 F.2d at 618.

The facts presented in the instant case are very similar to those in Clark. Here, although Plaintiff's duties were changed following the Bruno jury verdict which found him liable for excessive use of force, he nonetheless remained a Sergeant, his pay was not reduced and he did not lose any other privilege of employment. Pl.'s Dep. 214:16-17. Additionally, although Plaintiff's duties were reduced following the Bruno jury verdict, Plaintiff was not "stripped of all of his duties." Plaintiff claims that Chief Beining instructed him to do nothing at all following the Bruno trial and stripped his "complete job away from his as range master," but Chief Beining testified at deposition that he only removed Plaintiff in a limited capacity from his use-of-force training role. Beining Dep. 80:5-20. Chief Beining further testified that, as range master, Plaintiff remained responsible for overseeing the use-of-force training and running the qualification course. Beining Dep. 80:18-81:2. Specifically, Plaintiff remained in charge of making sure all the other officers were properly trained in the use of their weapons and met state qualifications and the attorney general's guidelines for the training for use-of-force. Beining Dep. 82:12-16. Furthermore, Chief Beining testified that Plaintiff was only being removed from his role as use-of-force instructor on a temporary basis for the spring qualification. Beining Dep. 78:15-17. Although Plaintiff may have subjectively believed that these changes to his duties were permanent, he admitted Chief Beining told him "that's just the way its going to be for now." Pl.'s Dep 205:19-22. Moreover, even if the changes to Plaintiff's duties would have been permanent, Plaintiff last worked on or about March 16, 2007, just days after Chief Beining allegedly "stripped him of all his duties" and instructed him to "sit on his hands" and do nothing. Thereafter, Plaintiff obtained a doctor's note recommending that he take three weeks off because of high stress and blood pressure, and he subsequently applied for disability retirement as of May 4, 2007, with an effective termination date of April 30, 2007.

Applying the traditional indicia of change in rank enunciated by the Third Circuit in Clark, this Court finds Plaintiff has not suffered a constructive reduction in rank. Consequently, as a matter of law, no property interest in Plaintiff's employment created by N.J.S.A 40A:14-147 was infringed.

Defendants also assert that Plaintiff had access to a procedure for challenging any alleged deprivation through the Collective Bargaining Agreement. Defendants therefore argue that, even if Plaintiff's property interests were infringed, Plaintiff's failure to take advantage of the procedures available under the Collective Bargaining Agreement is fatal to his due process claim.

"In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Persico, 67 Fed. Appx. at 675 (quoting Alvin v. Suzuki, 227 F.3d 107, 117 (3d Cir. 2000)); see also Veggian v. Camden Bd. of Educ., 600 F. Supp. 2d 615, 623 (D.N.J. 2009) (To establish a violation of her right to procedural due process, plaintiff must show that a person acting under color of state law deprived her of a protected property interest and "that the state procedure for challenging the deprivation does not satisfy the requirements of procedural due process.") (quoting DeBlasio v. Zoning Bd., 53 F.3d 592, 597 (3d Cir. 1995),overruled on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003), cert. denied, 516 U.S. 93). "If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Id. (quoting Alvin, 227 F.3d at 117). "[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982)). "A due process violation `is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.'" Id. (quoting Zinermon v. Burch, 494 U.S. 113, 126, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990)).

Here, Article V of the Collective Bargaining Agreement clearly sets forth the procedure for filing a grievance. See "Collective Bargaining Agreement" at p. 4, Art. V. Plaintiff has neither alleged that he has been prevented from utilizing the grievance procedures in the CBA nor alleged any facts to show that the grievance procedure set forth in the CBA did not provide him with an adequate remedy to the alleged deprivation. Thus, Plaintiff's argument that he did not utilize the CBA's grievance procedures to present his complaints because doing so was futile is unpersuasive. A plaintiff may not skip the procedures provided to him in order to "use the federal courts as a means to get back what he wants . . . even when the plaintiff contends that one part of the process afforded him was biased, so long as there were avenues of review available to him." Persico, 67 Fed. Appx. at 675 (internal citations omitted) (citing Alvin, 227 F.3d at 119 ("An allegation that initial stages of a process had been biased does not mean that the later processes will be biased as well.")). The grievance procedures set forth in the CBA constitute constitutional due process and Plaintiff was not deprived of due process; he chose to not take advantage of the process available. To the extent that Plaintiff claims that his constitutional right to due process was violated because Defendants did not provide him with a written notice regarding the changes to his duties, this claim fails as well, since the Court has already found that Plaintiff was not constructively reduced in rank and thus Defendants were not required to provide Plaintiff with a written notice.

Accordingly, Defendant's Motion for Summary Judgment as to Plaintiff's due process claims is GRANTED.

2. Substantive Due Process

Plaintiff's substantive due process claim fails as well. The threshold inquiry in a nonlegislative substantive due process claim is whether a plaintiff has a protected property interest to which the Fourteenth Amendment's due process protection applies.Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 140 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000), overruled on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003), cert. denied, 516 U.S. 93)). Although it is well-settled that state-created property interests are entitled to protection under the procedural component of the Due Process Clause, "not all property interests worthy of procedural due process protection are protected by the concept of substantive due process." Id. (citing Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)). "Rather, to state a substantive due process claim, "a plaintiff must have been deprived of a particular quality of property interest." Id. (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598 (3d Cir. 1995)). "[W]hether a certain property interest embodies this `particular quality' is not determined by reference to state law, but rather depends on whether that interest is `fundamental' under the United States Constitution. Id. (citing Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 229, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985) (Powell, J., concurring)).

In Nicholas, the Third Circuit addressed the question of whether a state-employee's tenured employment is a fundamental property interest and held that such a property interest is not so fundamental as to be entitled to substantive due process protection. Id. at 142. The Third Circuit found that tenured public employment is a "wholly state-created contract right" that "bears little resemblance to the other rights and property interests that have been deemed to fundamental under the constitution." Id. at 143. The Nicholas court held that public employment is not a property interest that is "deeply rooted in the Nation's history and traditions . . . [n]or does public employment approach the interests `implicit in the concept of ordered liberty' like personal choice in matters of marriage and family." Id. (quoting Homar v. Gilbert, 63 F. Supp. 2d 559, 576 (M.D. Pa. 1999)). The Third Circuit viewed "public employment as more closely analogous to those state-created property interests that this Court has previous[ly] deemed unworthy of substantive due process than to the venerable common-law rights of real property ownership." Id.

This Court has already concluded that Plaintiff's interest in particular duties of his employment was not subject to procedural due process protections. As such Plaintiff has failed to demonstrate that he possessed an interest protected by the due process clause. Moreover, even if this Court had found a protected interest in the particular duties of Plaintiff's employment, he would still have to demonstrate that this constitutes a "fundamental" interest under the United States Constitution. However, in Nicholas, the Third Circuit already decided that an interest in continued public employment is not a fundamental property interest subject to substantive due process protection. Because Plaintiff has failed to establish that he had a protected property interest worthy of substantive due process protection, his substantive due process claim fails.

Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's Substantive Due Process claim is GRANTED.

V. Plaintiff's Tortious Interference Claim

Plaintiff's Fourth Cause of Action alleges that Defendants tortiously interfered with Plaintiff's employment agreement by virtue of "the harassing activities and/or pattern engaged in, condoned, and/or tolerated, or policy adopted by the defendants, and or other acts or omissions/failure(s) to act on the part of the defendants." Compl. ¶ 85. Defendants assert Plaintiff's tortious interference claim fails because Plaintiff failed to file a timely Notice of Claim, and furthermore fails to state a claim on which relief can be granted. Defs.' Br. Mot. Summ. J. at 42. Plaintiff concedes that he did not file a Notice of Claim within ninety days of the accrual of the claim, or at any time. Pl.'s Br. Mot. Summ. J. at 18.

In order to bring a tort action against a "public entity or public employee" in New Jersey, the New Jersey Tort Claims Act ("NJTCA") requires a claimant to file a notice of claim with the entity within ninety days of the accrual of the claim or else be "forever barred" from asserting that cause of action. County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 174 (3d Cir. 2006) (citing N.J.S.A. 59:8-3 and -8). After the ninety-day period expires, the NJTCA allows a claimant, under certain circumstances, to petition the trial court to file a late Notice of Claim. Moon v. Warren Haven Nursing Home, 182 N.J. 507, A.2d 1174, 1176 (N.J. 2005) (citing N.J.S.A. 59:8-9). The request must be made within one year of the accrual of the claim, and the claimant "must demonstrate `reasons constituting extraordinary circumstances for his failure to file notice of claim within' the ninety-day period." Id.; see also Leidy v. County of Ocean, 398 N.J. Super. 449, 455 (App. Div. 2008).

Plaintiff's Opposition Brief concedes that he did not file a Notice of Claim within 90 days of the accrual of the claim, or at any time. Pl.'s Br. Mot. Summ. J. at 18. Therefore, Plaintiff is "forever barred" from asserting a claim for tortious interference. Therefore, Defendants are entitled to judgment as a matter of law and their motion for summary judgment on the tortious interference claim is GRANTED.

CONCLUSION

For the reasons set forth above, Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's Complaint is dismissed in its entirety.

Dated: September 24, 2010